S T A T E O F N E W Y O R K
________________________________________________________________________
7538
I N S E N A T E
April 20, 2010
___________
Introduced by Sens. SQUADRON, SCHNEIDERMAN -- read twice and ordered
printed, and when printed to be committed to the Committee on
Elections
AN ACT to amend the election law, in relation to providing for a state
board of elections enforcement unit and counsel
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 3 of section 3-100 of the election law, as
amended by chapter 220 of the laws of 2005, is amended to read as
follows:
3. The commissioners of the state board of elections shall have no
other public employment. The commissioners shall receive an annual sala-
ry of twenty-five thousand dollars, within the amounts made available
therefor by appropriation. The board shall, for the purposes of sections
seventy-three and seventy-four of the public officers law, be a "state
agency", and such commissioners shall be "officers" of the state board
of elections for the purposes of such sections. Within the amounts made
available by appropriation therefor, the state board of elections shall
appoint two co-executive directors, [counsel] AN ENFORCEMENT COUNSEL, A
DEPUTY ENFORCEMENT COUNSEL, WHO SHALL BE A MEMBER OF A DIFFERENT MAJOR
POLITICAL PARTY THAN THE ENFORCEMENT COUNSEL, A SPECIAL COUNSEL, A DEPU-
TY SPECIAL COUNSEL, WHO SHALL BE A MEMBER OF A DIFFERENT MAJOR POLITICAL
PARTY THAN THE SPECIAL COUNSEL, A DIRECTOR OF ELECTION OPERATIONS, A
DEPUTY DIRECTOR OF ELECTION OPERATIONS, WHO SHALL BE A MEMBER OF A
DIFFERENT MAJOR POLITICAL PARTY THAN THE DIRECTOR OF ELECTION OPER-
ATIONS, A DIRECTOR OF PUBLIC INFORMATION, A DEPUTY DIRECTOR OF PUBLIC
INFORMATION, WHO SHALL BE A MEMBER OF A DIFFERENT MAJOR POLITICAL PARTY
THAN THE DIRECTOR OF PUBLIC INFORMATION and such other staff members as
are necessary in the exercise of its functions, and may fix their
compensation. [Anytime after the effective date of the chapter of the
laws of two thousand five which amended this subdivision, the] THE
commissioners or, in the case of a vacancy on the board, the commission-
er of each of the major political parties shall appoint one co-executive
director. Each co-executive director shall serve a term of four years.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16946-01-0
S. 7538 2
THE ENFORCEMENT COUNSEL AND THE SPECIAL COUNSEL SHALL EACH SERVE A TERM
OF FOUR YEARS AND MAY ONLY BE REMOVED FOR CAUSE. ANY TIME AFTER THE
EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND TEN AMENDING
THIS SUBDIVISION, THE COMMISSIONERS, OR IN THE CASE OF A VACANCY ON THE
BOARD, THE COMMISSIONER, OF EACH OF THE SAME MAJOR POLITICAL PARTY AS
THE INCUMBENT ENFORCEMENT COUNSEL, DEPUTY ENFORCEMENT COUNSEL, SPECIAL
COUNSEL, DEPUTY SPECIAL COUNSEL, DIRECTOR OF ELECTION OPERATIONS, DEPUTY
DIRECTOR OF ELECTION OPERATIONS, DIRECTOR OF PUBLIC INFORMATION AND
DEPUTY DIRECTOR OF PUBLIC INFORMATION, SHALL APPOINT SUCH COUNSELS,
DIRECTORS AND DEPUTIES. Any vacancy in the office of co-executive direc-
tor, ENFORCEMENT COUNSEL, DEPUTY ENFORCEMENT COUNSEL, SPECIAL COUNSEL,
DEPUTY SPECIAL COUNSEL, DIRECTOR OF ELECTION OPERATIONS, DEPUTY DIRECTOR
OF ELECTION OPERATIONS, DIRECTOR OF PUBLIC INFORMATION AND DEPUTY DIREC-
TOR OF PUBLIC INFORMATION, shall be filled by the commissioners or, in
the case of a vacancy on the board, the commissioner of the same major
political party as the vacating incumbent for the remaining period of
the term of such vacating incumbent, FOR THE REMAINING PERIOD OF THE
TERM OF SUCH VACATING INCUMBENT.
S 2. Subdivision 3, paragraph (c) of subdivision 9-A and subdivision
17 of section 3-102 of the election law, subdivisions 3 and 17 as
amended by chapter 9 of the laws of 1978, paragraph (c) of subdivision
9-A as added by chapter 430 of the laws of 1997 and subdivision 17 as
renumbered by chapter 23 of the laws of 2005, are amended to read as
follows:
3. conduct any investigation necessary to carry out the provisions of
this chapter, PROVIDED, HOWEVER, THAT THE STATE BOARD OF ELECTIONS
ENFORCEMENT COUNSEL, ESTABLISHED PURSUANT TO SECTION 3-104 OF THIS ARTI-
CLE, SHALL CONDUCT ANY INVESTIGATION NECESSARY TO ENFORCE THE PROVISIONS
OF ARTICLE FOURTEEN OF THIS CHAPTER ON BEHALF OF THE BOARD OF ELECTIONS;
(c) establish [a] AN EDUCATIONAL AND training program on ALL REPORTING
REQUIREMENTS INCLUDING BUT NOT LIMITED TO the electronic reporting proc-
ess and make it EASILY AND READILY available to any such candidate or
committee AND NOTIFY ANY SUCH CANDIDATE OR COMMITTEE OF THE AVAILABILITY
OF THE MOST RECENT CAMPAIGN FINANCE HANDBOOK;
17. HEAR AND CONSIDER THE RECOMMENDATIONS OF THE STATE BOARD OF
ELECTIONS ENFORCEMENT COUNSEL REGARDING THE ENFORCEMENT OF VIOLATIONS OF
ARTICLE FOURTEEN OF THIS CHAPTER;
18. perform such other acts as may be necessary to carry out the
purposes of this chapter.
S 3. Section 3-104 of the election law, subdivisions 1, 3, 4 and 5 as
redesignated and subdivision 2 as amended by chapter 9 of the laws of
1978, is amended to read as follows:
S 3-104. State board of elections AND THE STATE BOARD OF ELECTIONS
ENFORCEMENT COUNSEL; enforcement powers. 1. (A) THERE SHALL BE A UNIT
KNOWN AS THE STATE BOARD OF ELECTIONS ENFORCEMENT UNIT ESTABLISHED WITH-
IN THE STATE BOARD OF ELECTIONS. THE HEAD OF SUCH UNIT SHALL BE THE
ENFORCEMENT COUNSEL.
(B) The state board of elections shall have jurisdiction of, and be
responsible for, the execution and enforcement of the provisions of
[article fourteen of this chapter and other] statutes governing
campaigns, elections and related procedures; PROVIDED HOWEVER THAT THE
ENFORCEMENT COUNSEL SHALL HAVE SOLE AUTHORITY WITHIN THE STATE BOARD OF
ELECTIONS TO INVESTIGATE ON HIS OR HER OWN INITIATIVE OR UPON COMPLAINT,
ALLEGED VIOLATIONS OF ARTICLE FOURTEEN OF THIS CHAPTER AND ALL
COMPLAINTS ALLEGING ARTICLE FOURTEEN VIOLATIONS SHALL BE FORWARDED TO
THE ENFORCEMENT UNIT. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
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DIMINISH OR ALTER THE STATE BOARD OF ELECTIONS' JURISDICTION PURSUANT TO
THIS CHAPTER.
2. Whenever [the state board of elections or other] A LOCAL board of
elections shall determine, on its own initiative or upon complaint, or
otherwise, that there is substantial reason to believe a violation of
this chapter or any code or regulation promulgated thereunder has
[occurred] BEEN COMMITTED BY A CANDIDATE OR POLITICAL COMMITTEE THAT
FILES STATEMENTS OR IS REQUIRED TO DO SO PURSUANT TO ARTICLE FOURTEEN OF
THIS CHAPTER SOLELY WITH SUCH LOCAL BOARD, it shall expeditiously make
an investigation which shall also include investigation of reports and
statements made or failed to be made by the complainant and any poli-
tical committee supporting his candidacy if the complainant is a candi-
date or, if the complaint was made by an officer or member of a poli-
tical committee, of reports and statements made or failed to be made by
such political committee and any candidates supported by it. [The state
board of elections, in lieu of making such an investigation, may direct
the appropriate board of elections to make an investigation.] The state
board of elections may request, and shall receive, the assistance of the
state police in any investigation it shall conduct.
3. [If, after an investigation, the state or other board of elections
finds reasonable cause to believe that a violation warranting criminal
prosecution has taken place, it shall forthwith refer the matter to the
district attorney of the appropriate county and shall make available to
such district attorney all relevant papers, documents, testimony and
findings relevant to its investigation.
4. The state or other board of elections may, where appropriate,
commence a judicial proceeding with respect to the filing or failure to
file any statement of receipts, expenditures, or contributions, under
the provisions of this chapter, and the state board of elections may
direct the appropriate other board of elections to commence such
proceeding.
5.] IF THE ENFORCEMENT COUNSEL DETERMINES THAT A VIOLATION OF SUBDI-
VISION ONE OF SECTION 14-126 OF THIS CHAPTER HAS OCCURRED WHICH COULD
WARRANT A CIVIL PENALTY, THE ENFORCEMENT COUNSEL SHALL, UPON HIS OR HER
DISCRETION, SEEK TO RESOLVE THE MATTER EXTRA-JUDICIALLY OR COMMENCE A
SPECIAL PROCEEDING IN THE SUPREME COURT PURSUANT TO SECTION 16-114 OF
THIS CHAPTER.
4. UPON RECEIPT OF A COMPLAINT AND SUPPORTING INFORMATION OR AN INTER-
NAL REFERRAL FROM THE ENFORCEMENT UNIT ALLEGING ANY OTHER VIOLATION OF
ARTICLE FOURTEEN OF THIS CHAPTER, THE ENFORCEMENT COUNSEL SHALL ANALYZE
THE FACTS AND THE LAW RELEVANT TO SUCH COMPLAINT OR REFERRAL TO DETER-
MINE IF AN INVESTIGATION SHOULD BE UNDERTAKEN. THE ENFORCEMENT COUNSEL
SHALL, IF NECESSARY, REQUEST ADDITIONAL INFORMATION FROM THE COMPLAINANT
TO ASSIST SUCH COUNSEL IN MAKING THIS DETERMINATION. SUCH ANALYSIS SHALL
INCLUDE THE FOLLOWING: FIRST, WHETHER THE ALLEGATIONS, IF TRUE, WOULD
CONSTITUTE A VIOLATION OF ARTICLE FOURTEEN OF THIS CHAPTER AND, SECOND,
WHETHER THE ALLEGATIONS ARE SUPPORTED BY CREDIBLE EVIDENCE.
5. IF THE ENFORCEMENT COUNSEL DETERMINES THAT THE ALLEGATIONS
CONTAINED IN A COMPLAINT, IF TRUE, WOULD NOT CONSTITUTE A VIOLATION OF
ARTICLE FOURTEEN OF THIS CHAPTER OR THAT THE ALLEGATIONS ARE NOT
SUPPORTED BY CREDIBLE EVIDENCE, HE OR SHE SHALL: (A) NOTIFY THE DEPUTY
ENFORCEMENT COUNSEL OF SUCH DETERMINATION AND (B) PUBLICLY NOTIFY THE
STATE BOARD OF ELECTIONS OF SUCH DETERMINATION. IF THE STATE BOARD OF
ELECTIONS PUBLICLY DETERMINES, AS PROVIDED IN THIS TITLE, THAT THE ALLE-
GATIONS, IF TRUE, WOULD CONSTITUTE A VIOLATION OF ARTICLE FOURTEEN OF
THIS CHAPTER AND THAT THE ALLEGATIONS APPEAR TO BE SUPPORTED BY CREDIBLE
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EVIDENCE, IT SHALL DIRECT THAT THE ENFORCEMENT COUNSEL CONDUCT AN INVES-
TIGATION. LACKING SUCH A DETERMINATION, THE ENFORCEMENT COUNSEL SHALL
ISSUE A LETTER TO THE COMPLAINANT DISMISSING THE COMPLAINT.
6. IF THE ENFORCEMENT COUNSEL DETERMINES THAT THE ALLEGATIONS, IF
TRUE, WOULD CONSTITUTE A VIOLATION OF ARTICLE FOURTEEN OF THIS CHAPTER
AND THAT THE ALLEGATIONS APPEAR TO BE SUPPORTED BY CREDIBLE EVIDENCE, HE
OR SHE SHALL: (A) NOTIFY THE DEPUTY ENFORCEMENT COUNSEL OF (I) HIS OR
HER INTENT TO RESOLVE THE MATTER EXTRA-JUDICIALLY DUE TO THE DE MINIMUS
NATURE OF THE VIOLATION; OR (II) HIS OR HER INTENT TO COMMENCE AN INVES-
TIGATION, AND (B) PUBLICLY NOTIFY THE STATE BOARD OF ELECTIONS OF SUCH
INTENT NO LATER THAN THE BOARD'S NEXT REGULARLY SCHEDULED MEETING.
NOTIFICATION SHALL SUMMARIZE THE RELEVANT FACTS AND THE APPLICABLE LAW
AND SHALL, TO THE EXTENT POSSIBLE, PROTECT FROM PUBLIC DISCLOSURE THE
IDENTITY OF THE COMPLAINANT AND THE INDIVIDUAL SUBJECT TO THE COMPLAINT.
THE DEPUTY ENFORCEMENT COUNSEL SHALL HAVE THE OPPORTUNITY TO REVIEW THE
ENTIRE FILE OF ANY PRELIMINARY INVESTIGATION CONDUCTED BY THE ENFORCE-
MENT COUNSEL A MINIMUM OF TEN DAYS PRIOR TO SAID REGULARLY SCHEDULED
MEETING OF THE BOARD AND TO SUBMIT A PUBLIC, WRITTEN CONCURRENCE WITH OR
DISSENT FROM THE ENFORCEMENT COUNSEL'S PROPOSAL.
7. IF, UPON CONSIDERING THE ENFORCEMENT COUNSEL'S NOTICE OF INTENT TO
COMMENCE AN INVESTIGATION AND THE DEPUTY ENFORCEMENT COUNSEL'S RECOMMEN-
DATION, THE STATE BOARD OF ELECTIONS BELIEVES THAT THE ALLEGATIONS, IF
TRUE, WOULD NOT CONSTITUTE A VIOLATION OF ARTICLE FOURTEEN OF THIS CHAP-
TER, OR THE ALLEGATIONS ARE NOT SUPPORTED BY CREDIBLE EVIDENCE OR, THAT
ON BALANCE, THE EQUITIES FAVOR A DISMISSAL OF THE COMPLAINT, THE BOARD
SHALL PUBLICLY DIRECT THAT AN INVESTIGATION NOT BE UNDERTAKEN NO LATER
THAN SIXTY DAYS AFTER THE RECEIPT OF NOTIFICATION FROM THE ENFORCEMENT
COUNSEL OF HIS OR HER INTENT TO COMMENCE AN INVESTIGATION. IN DETERMIN-
ING WHETHER THE EQUITIES FAVOR A DISMISSAL OF THE COMPLAINT, THE STATE
BOARD OF ELECTIONS SHALL CONSIDER THE FOLLOWING FACTORS: (A) WHETHER THE
COMPLAINT ALLEGES A DE MINIMUS VIOLATION OF ARTICLE FOURTEEN OF THIS
CHAPTER; (B) WHETHER THE SUBJECT OF THE COMPLAINT HAS MADE A GOOD FAITH
EFFORT TO CORRECT THE VIOLATION; AND (C) WHETHER THE SUBJECT OF THE
COMPLAINT HAS A HISTORY OF SIMILAR VIOLATIONS. DETERMINATIONS OF THE
STATE BOARD OF ELECTIONS TO DISMISS A COMPLAINT AND NOT PROCEED WITH A
FORMAL INVESTIGATION SHALL BE VOTED UPON AS PROVIDED IN SUBDIVISION FOUR
OF SECTION 3-100 OF THIS TITLE AT AN OPEN MEETING PURSUANT TO ARTICLE
SEVEN OF THE PUBLIC OFFICERS LAW, AND SHALL BE MADE ON A FAIR AND EQUI-
TABLE BASIS AND WITHOUT REGARD TO THE STATUS OF THE SUBJECT OF THE
COMPLAINT.
8. ABSENT A TIMELY DETERMINATION BY THE STATE BOARD OF ELECTIONS THAT
AN INVESTIGATION SHALL NOT BE UNDERTAKEN, THE ENFORCEMENT COUNSEL SHALL
COMMENCE AN INVESTIGATION ON A TIMELY BASIS. IF THE ENFORCEMENT COUNSEL
DETERMINES THAT ADDITIONAL INVESTIGATIVE POWERS, AS PROVIDED FOR IN
SUBDIVISIONS FOUR, FIVE AND SIX OF SECTION 3-102 OF THIS TITLE, ARE
NEEDED TO COMPLETE THE COUNSEL'S INVESTIGATION, HE OR SHE SHALL REQUEST
SUCH ADDITIONAL POWERS FROM THE STATE BOARD OF ELECTIONS. SUCH POWERS
SHALL BE GRANTED BY THE BOARD IN PUBLIC ONLY WHEN THE BOARD FINDS THAT
FURTHER INVESTIGATION IS WARRANTED AND JUSTIFIED.
9. AT THE CONCLUSION OF ITS INVESTIGATION, THE ENFORCEMENT COUNSEL
SHALL PROVIDE THE DEPUTY ENFORCEMENT COUNSEL AND THE STATE BOARD OF
ELECTIONS WITH A WRITTEN RECOMMENDATION AS TO: (A) WHETHER SUBSTANTIAL
REASON EXISTS TO BELIEVE A VIOLATION OF ARTICLE FOURTEEN OF THIS CHAPTER
HAS OCCURRED AND, IF SO, THE NATURE OF THE VIOLATION AND ANY APPLICABLE
PENALTY, AS DEFINED IN SECTION 14-126 OF THIS CHAPTER, BASED ON THE
NATURE OF THE VIOLATION; (B) WHETHER THE MATTER SHOULD BE RESOLVED
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EXTRA-JUDICIALLY; (C) WHETHER A SPECIAL PROCEEDING SHOULD BE COMMENCED
IN THE SUPREME COURT TO RECOVER A CIVIL PENALTY; AND (D) WHETHER A
REFERRAL SHOULD BE MADE TO A DISTRICT ATTORNEY PURSUANT TO SUBDIVISION
ELEVEN OF THIS SECTION BECAUSE REASONABLE CAUSE EXISTS TO BELIEVE A
VIOLATION WARRANTING CRIMINAL PROSECUTION HAS TAKEN PLACE. THE DEPUTY
ENFORCEMENT COUNSEL SHALL HAVE THE OPPORTUNITY TO REVIEW THE ENTIRE FILE
OF ANY INVESTIGATION CONDUCTED BY THE ENFORCEMENT COUNSEL A MINIMUM OF
TEN DAYS PRIOR TO SAID REGULARLY SCHEDULED MEETING OF THE BOARD AND TO
SUBMIT A PUBLIC, WRITTEN CONCURRENCE WITH OR DISSENT FROM THE ENFORCE-
MENT COUNSEL'S RECOMMENDATION.
10. THE STATE BOARD OF ELECTIONS SHALL ACCEPT, MODIFY OR REJECT THE
ENFORCEMENT COUNSEL'S RECOMMENDATION NO LATER THAN SIXTY DAYS AFTER
RECEIPT OF SUCH RECOMMENDATION. IN MAKING ITS DETERMINATION, THE BOARD
SHALL AGAIN CONSIDER: (A) WHETHER THE COMPLAINT ALLEGES A DE MINIMUS
VIOLATION OF ARTICLE FOURTEEN OF THIS CHAPTER; (B) WHETHER THE SUBJECT
OF THE COMPLAINT HAS MADE A GOOD FAITH EFFORT TO CORRECT THE VIOLATION;
AND (C) WHETHER THE SUBJECT OF THE COMPLAINT HAS A HISTORY OF SIMILAR
VIOLATIONS. ALL SUCH DETERMINATIONS SHALL BE VOTED UPON AS PROVIDED IN
SUBDIVISION FOUR OF SECTION 3-100 OF THIS TITLE AT AN OPEN MEETING
PURSUANT TO ARTICLE SEVEN OF THE PUBLIC OFFICERS LAW, AND SHALL BE MADE
ON A FAIR AND EQUITABLE BASIS, WITHOUT REGARD TO THE STATUS OF THE
SUBJECT OF THE COMPLAINT.
11. (A) IF THE STATE BOARD OF ELECTIONS DETERMINES, AS PROVIDED IN
SUBDIVISION TEN OF THIS SECTION, THAT SUBSTANTIAL REASON EXISTS TO
BELIEVE THAT A PERSON, ACTING AS OR ON BEHALF OF A CANDIDATE OR POLI-
TICAL COMMITTEE UNDER CIRCUMSTANCES EVINCING AN INTENT TO VIOLATE SUCH
LAW, HAS UNLAWFULLY ACCEPTED A CONTRIBUTION IN EXCESS OF A CONTRIBUTION
LIMITATION ESTABLISHED IN ARTICLE FOURTEEN OF THIS CHAPTER, WHICH COULD
WARRANT A CIVIL PENALTY AS PROVIDED FOR IN SUBDIVISION THREE OF SECTION
14-126 OF THIS CHAPTER, THE BOARD SHALL DIRECT THE COMMENCEMENT OF A
SPECIAL PROCEEDING IN THE SUPREME COURT.
(B) IF THE STATE BOARD OF ELECTIONS DETERMINES, AS PROVIDED IN SUBDI-
VISION TEN OF THIS SECTION THAT REASONABLE CAUSE EXISTS TO BELIEVE A
VIOLATION WARRANTING CRIMINAL PROSECUTION HAS TAKEN PLACE, THE BOARD
SHALL REFER THE MATTER TO A DISTRICT ATTORNEY AND SHALL MAKE AVAILABLE
TO SUCH DISTRICT ATTORNEY ALL PAPERS, DOCUMENTS, TESTIMONY AND FINDINGS
RELEVANT TO ITS INVESTIGATION.
12. UPON NOTIFICATION THAT A SPECIAL PROCEEDING HAS BEEN COMMENCED BY
A PARTY OTHER THAN THE STATE BOARD OF ELECTIONS, PURSUANT TO SECTION
16-114 OF THIS CHAPTER, THE STATE BOARD OF ELECTIONS SHALL DIRECT THE
ENFORCEMENT COUNSEL TO INVESTIGATE THE ALLEGED VIOLATIONS UNLESS OTHER-
WISE DIRECTED BY THE COURT.
13. THE ENFORCEMENT COUNSEL SHALL PREPARE A REPORT, TO BE INCLUDED IN
THE ANNUAL REPORT TO THE GOVERNOR AND LEGISLATURE, SUMMARIZING THE
ACTIVITIES OF THE UNIT DURING THE PREVIOUS YEAR. SUCH REPORT SHALL
INCLUDE: (A) THE NUMBER OF COMPLAINTS RECEIVED; (B) THE NUMBER OF
COMPLAINTS THAT WERE FOUND TO NEED INVESTIGATION AND THE NATURE OF EACH
COMPLAINT; AND (C) THE NUMBER OF MATTERS THAT HAVE BEEN RESOLVED. THE
REPORT SHALL NOT CONTAIN ANY INFORMATION FOR WHICH DISCLOSURE IS NOT
PERMITTED.
14. The state board of elections may promulgate rules and regulations
consistent with law to effectuate the provisions of this section.
S 4. The state of New York shall appropriate during each fiscal year
to the New York state board of elections enforcement unit, not less than
thirty-five percent of the appropriation available from the general fund
S. 7538 6
for the state board of elections to pay for the expenses of such
enforcement unit.
S 5. This act shall take effect immediately.